BC court weighs in on whether mandatory unpaid leave for non-vaccinated employees constitutes constructive dismissal
Following the release of vaccines against the COVID-19 virus in 2021, many employers implemented mandatory vaccination policies which provided for unpaid leaves for employees who refused to get vaccinated without a legitimate reason (such as a medical contraindication). Like many other COVID-19 policies and orders, the right of employers to do this was in some cases challenged. In one such case, an employee took her employer to Court and argued that the employer’s unilateral decision to place her on an unpaid leave as a result of her refusal to get vaccinated amounted to constructive dismissal. The Court disagreed.
On September 26, 2022, the Court released its decision in Parmar v. Tribe Management Inc. The BCSC dismissed the employee’s claim and held that during the pandemic, implementing a mandatory vaccination policy (“MVP”) and placing an employee who failed to comply with that policy on unpaid leave were reasonable measures.
The plaintiff, Ms. Parmar, occupied a senior management position at Tribe Management (“Tribe”), a property management company. In October of 2021, Tribe implemented an MVP based on the widespread availability of vaccines, evidence of other employers (including the federal and provincial governments) implementing MVPs, public health orders requiring vaccination, and other pandemic-related guidance.
Tribe’s MVP required all employees to provide proof of vaccination, with exemptions for religious and medical reasons. Ms. Parmar did not seek an exemption on either of those grounds. Ms. Parmar did not comply with the MVP, and was placed on an unpaid leave of absence for three months, with a review at the end of that period.
A few weeks after being placed on leave, Ms. Parmar requested to return to work within one week, or she would allege constructive dismissal. In response, Tribe placed her on an indefinite unpaid leave until she complied with the MVP. Ms. Parmar resigned and filed her constructive dismissal claim.
The Court dismissed Ms. Parmar’s constructive dismissal claim, finding that the MVP was reasonable and lawful.
The Court took judicial notice that COVID-19 is an easily transmissible, potentially deadly virus, and that vaccines are safe and effective. Further, the Court considered relevant arbitration cases and emphasized that a contextual analysis of the situation at the time the MVP was implemented is necessary. Ultimately, in the unprecedented circumstances of the COVID-19 pandemic, Tribe’s decision to implement an MVP and place Ms. Parmar on an unpaid leave for failing to abide by the MVP was reasonable.
Take away for employers
This decision confirms that MVPs implemented during the peak pandemic, which were based in public health guidance and government directives, and which allow for human rights based exceptions, are reasonable and will be supported judicially. The court will still take a fact-specific, contextual approach to determine the reasonableness of other MVPs and pandemic-related policies.
However, what worked in October 2021, likely would not work in October 2022. In the past year, governments and employers have rescinded their mandatory vaccination mandates and the risk of serious harm from the virus appears materially reduced (both as a function of the widespread adoption of vaccines and anti-viral treatments against COVID-19, and the herd immunity component associated with multiple people catching and recovering from the disease).
In summary, what appeared a reasonable and even necessary safety precaution in 2021 may not be necessary or reasonable today. The employer that continues to maintain an unpaid leave as the alternative to vaccination does so at risk of a constructive dismissal suit.
For further information on this decision and how it might affect your workplace, please contact any of the members of the DLA Piper Canadian Employment and Labour Law Service Group listed here.
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